Prime Water Australia Pty Ltd Employee Collective Agreement 2009-2012
[2009] FWA 131
•24 AUGUST 2009
[2009] FWA 131 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Prime Water Australia Pty Ltd Employee Collective Agreement 2009-2012
(AG2009/293)Building, metal and civil construction industries | |
COMMISSIONER CARGILL | SYDNEY, 24 AUGUST 2009 |
Prime Water Australia Pty Ltd Employee Collective Agreement 2009-2012.
[1] An application has been made for approval of an enterprise agreement known as Prime Water Australia Pty Ltd Employee Collective Agreement 2009-2012 (the Agreement).
[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and is thus subject to the approval requirements of Sub-division B, Division 4, Part 2-4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act during the bridging period.
[3] On the face of the materials filed, I was not satisfied that the employer had provided a notice of employee representational rights as required by s.173 of the Act. Consequently I listed the matter for hearing on 20 August 2009. As a result of exchanges with representatives during the hearing and the examination of material provided by them on 21 August 2009, I have formed the view that the provisions of section 173 of the Act, concerning notice of employee representational rights, were not complied with.
[4] In the absence of compliance with the requirements of s.173 of the Act, I am not satisfied that the agreement has been genuinely agreed to by employees to be covered by it (s.186(2)(a)). Genuine agreement (s.188) requires compliance with s.181(2) of the Act which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given. In the absence of a notice of employee representational rights, s.181(2) has not been complied with.
[5] In my view, the requirement in s.173 of the Act that an employer provide a notice of employee representational rights is a mandatory pre-requisite to the bargaining process and cannot be waived or rectified by an undertaking under s.190 of the Act. In the absence of compliance with s.173, the application is incompetent. In this regard I follow and apply the decision of SDP Watson in matter of Dunbrae Pty Ltd t/a Global Food Equipment - Employee Collective Agreement [2009] FWA 73.
[6] I decline to approve the agreement.
COMMISSIONER
Appearances:
P. Beggs, J Peterson and P. Harrison for the applicant.
C. Fitton and R Boyce of the Consultative Committee representing the employees.
Hearing details:
2009,
Sydney:
August 20.
1 Section 2, Part 1, Schedule 2. the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
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